VINOD KUMAR Vs. HARBANS SINGH AZAD

JUDGEMENT

(1.) THE point referred to "the wisdom of five" is not a riddle which only Oedipus could have solved. Though the Revision Petition has been referred to us for decision in toto, In essence the question requiring consideration is whether the issuance of a notice under Section 106, T. P. Act, is a must before a landlord can seek eviction of the tenant under the provisions of the East Punjab Urban Rent Restriction Act, 1949 (referred hereinafter as the Rent Act ).

(2.) FACTS must precede percipience and judgment would follow without constraint. Vinod Kumar minor, acting through his father as his next friend, (to be referred for brevity as the landlord) launched a petition under Section 13 of the Rent Act against Harbans Singh Azad respondent (referred henceforth as the tenant) for his eviction from a shop situated at Sirsa, District Hissar, on two grounds, namely, (i) the tenant had failed to pay the rent for the premises with effect from December 2, 1965, i. e. , for a period of more than thirteen months and (ii) he had kept the shop closed and had not occupied the same for his business for about 17/18 months before filing of the petition. An additional ground had also been taken that the tenant had caused damage to the property and had impaired its value and utility. This ground was not, however, agitated at any stage. The Rent Controller issued the necessary notice of the petition to the tenant for February 10, 1967. It was, however, reported that the tenant had refused to accept service of the notice. Ex parte proceedings were, therefore, ordered against him on the date mentioned above and the matter was adjourned to February 20, 1967 for recording ex parte evidence of the landlord. on the latter date after recording the evidence so produced by the landlord, an order for eviction of the tenant was passed by the Rent Controller. Sometime later, to be precise on April 11, 1967, the tenant moved the Controller with a prayer for setting aside the ex parte order of ejectment and these proceedings culminated with order dated December 18. 1967 by which the Rent Controller set aside his earlier order dated February 20, 1967. He also directed that the ejectment application be put up on January 30, 1968 for further proceedings. on that date, the tenant tendered the arrears of rent and costs etc. (Rs. 581.00 in all) to the landlord but the latter refused to accept the tender, claiming that the same had not been made on the "first date of hearing".

(3.) THE tenant utilised the right of appeal under Section 15 (b) of the Rent Act and was rewarded with success before ttie Appellate Authority, which set aside the order of the Rent Controller and dismissed the landlord's application for ejectment. While doing so, the Appellate Authority considered the point involved in issue No. 1 and was of the view that the tender of arrears of rent etc. by the tenant on January 30, 1963, was a valid tender because on the date when the ex parte proceedings were set aside, i. e. , December 18, 1967, the ejectment application was not before the Rent Controller and hence no proceedings had taken place in the said application on that date. The Appellate Authority reinforced its conclusion with the premises that after the ex parte order had been set aside on December 18, 1967, there was no due service on the tenant and a copy of the ejectment application had not been delivered to him on the basis of which he could have tendered the arrears of rent etc. on that date, In regard to issue No. 2, the Appellate Authority after concluding that the tenancy between the parties had not expired by efflux of time, nor had it been determined by a notice to quit, proceeded to hold that such a contractual tenancy required issue of a notice under Section 106, T. P. Act, before any action for the ejectment of the tenant could be brought. No such notice (having admittedly been issued, the Appellate Authority non-suited the landlord on this ground also. The finding on the last issue No. 2-A, as recorded by the Rent Controller, that the tenant had ceased to occupy the premises without reasonable cause for more than four months before the filing of the application for ejectment was, however, affirmed by the Appellate Authority. In consequence of the findings on other issues, the ejectment application filed by the landlord was dismissed.